The Nullification Door can Swing Both Ways

By Bruce Johnson  June 24, 2013

Patrick Henry, John Calhoun, and George Mason would be delighted that States are showing some backbone after 220 years of Federal power encroachment. States are again beginning to question Federal authority by, in effect, nullifying some Federal mandates. But the "nullification door" is swinging both ways. Is it not nullification of law by the Federal Government itself when they who hold the federal reins refuse to enforce the laws currently on the books? And when no enforcement of the law is at the whim of an administration, what recourse exists for the citizenry? For the States?

Both ends of the political spectrum have engaged in nullification, the rejection of Federal law. As noted in this piece by David Leib, the current focal points of dissonance between State and Federal revolve around a strange mix of topics; healthcare, guns, illegal immigration, citizen identification, and marijuana. We can clearly identify both ends of the sociopolitical spectrum and note they have become strange bedfellows in disobeying the federal government. Coloradans thumb their nose at federal marijuana laws while Montanans do the same with federal gun laws.

Mr. Leib in his article " Federal Nullification Efforts Mounting in States", lists a few of today’ de facto nullifications:

"About 20 states now have medical marijuana laws allowing people to use pot to treat chronic pain and other ailments — despite a federal law that still criminalizes marijuana distribution and possession. Ceding ground to the states, President Barack Obama’s administration has made it known to federal prosecutors that it wasn’t worth their time to target those people…

Federal authorities have repeatedly delayed implementation of the 2005 Real ID Act… about half the state legislatures have opposed its implementation, according to the National Conference of State Legislatures.

About 20 states have enacted measures challenging Obama’s 2010 health care laws…

After Montana passed a 2009 law declaring that federal firearms regulations don’t apply to guns made and kept in that state, eight other states have enacted similar laws…"

But the nullification door swings both ways. As States issue an affront to select federal law, the federal authorities elected and appointed seem also to have some issues themselves with federal law. Even though they have pledged via their oaths of office to enforce these laws, when it serves their political purposes we often get nonenforcement. Despite vowing diligence there is a steady record that is in effect "legislation via non action" by federal agencies and apparently done so at the direction of the Executive and Judicial branches.

In some instances the federal authorities reject any local, police, or State assistance in enforcing federal law as in the Arizona illegal immigration situation. In many marijuana cases, the federal government seems uninterested that State law conflicts with the law on the federal books. Illinois and Chicago in particular drag out a federal mandate to comply with the Second Amendment. Yet most assuredly those same federal authorities will expect local enforcement of new gun laws in Montana.

When polling place violations go unprosecuted, when sanctuary cities invite illegal immigrants and guarantee no pursuit, when immigration agents are told to ease up, and when the War Powers Act that requires the president to consult with Congress but the president only delivers mere notification… are these not de facto nullifications of law?

When States detect that they are being harmed by new federal law, it is more justifiable for them to act than those oath obligated federal office holders channeling their political wishes by choosing which laws to enforce and which to ignore.

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people"

As Madison noted in his Federalist Paper #45,

"The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.".

Article I, sect 8 of the Constitution clearly delineates that which the Federal Government "can" do, and section 10 of the same Article clearly states what the States "can’t" do. State governments preceded the "federal experiment" and it was from these 13 States the powers so delegated to the "federal experiment" originated. But now add in the Supremacy Clause noting State law can not be in conflict with Federal Law, and if such occurrence arise, Federal law will be "supreme’. More complications arise when the powers of Article I, sect 8 are deemed unbound by how activists interpret the "necessary and proper" clause. All of this sets before us a cauldron of countervailing double- entendre laden documents that often seem internal contradictory. Is it a ‘mish mash’ or a brilliant work of governance?

The Federal Papers lend guidance to the Constitution. These papers fill in the gaps and clarify instances in which the English language within the Constitution sometimes falls short. In Federalist #32 and #33, Hamilton, a devout federalist, points to a certain sovereignty status retained by the States.

32nd:

As the plan of the convention aims only at a partial union or consolidation, the State governments would clearly retain all the rights of sovereignty which they before had, and which were not, by that act, exclusively delegated to the United States.

Today’s resurgence of nullification of federal law by the States is perhaps the greatest since 1861. John C. Calhoun led a nullification movement in South Carolina in 1832 regarding the collection of federal tariffs on imports. Prior to that, there were the instances of opposition to a National Bank, New England’s opposition to the War of 1812 voiced in the Hartford Convention and also New England’s opposition to the Mexican War and their sending of troops to that effort. Thomas Jefferson himself led nullification efforts in 1798 with the Kentucky Resolution in which "the states had the right and the duty to declare unconstitutional any acts of Congress that were not authorized by the Constitution". Madison followed with the Virginia Resolution in the same spirit.

"If prudently limited and wisely directed, almost any government can be a blessing; yet unless firmly constrained, any government of whatever form will tend to augment its powers in excess, going beyond even the plainest legal limits on its just authority, and will sooner or later become dangerous." Thomas Jefferson (A Constitutional History of Secession, Graham)

Nullification has three stages. (as noted by Graham pp. 108, 109)

Interposition: This involves the identification of the grievances by the offended party (State), adopted by the legislator of that State, and noting the unconstitutional nature of the proposed act by the Federal Government or by other States as being injurious to the offended State. A demand for "appropriate redress" is included.

State Declaration of Nullification: The State will call for assemblies and authorities within the State to then empower such bodies to then craft an ordinance of nullification.

Ordinance of Secession: If the ordinance of nullification should fail to restore proper balance between the Federal Government and the State, by act of sovereign power and ordinance of secession will be adopted.

Secession is unlikely today, but the concept was unresolved in 1861. State sovereignty was a more justifiable position. Virginia, Rhode Island, and New York all ratified the Constitution with the proviso that if they became harmed by the "federal experiment", they retained the powers to withdraw. To extrapolate, and because these ratifications were unconditionally accepted at the convention in which all States were equal partners, these rights to ‘withdraw’ radiated to all the States ratifying at that time.

State resistance to harmful federal legislation is an important component to our federal system. Nullification must be promoted cautiously but once committed, States must hold firm even if it draws an extortion such as the withholding of Federal highway funds. Turnabout is fair play, and as an administration selectively ignores passed law, States gain traction in challenging new Federal law. Principle must trump financial consideration and the promise that is our form of government must not be whittled away.

Read more: http://www.americanthinker.com/2013/06/the_nullification_door_can_swing_both_ways.html#ixzz2XB1xZEFz

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Federal nullification efforts mounting in states

By DAVID A. LIEB — Associated Press

 

 

ohhhh-so-beautiful

JEFFERSON CITY, Mo. — Imagine the scenario: A federal agent attempts to arrest someone for illegally selling a machine gun. Instead, the federal agent is arrested – charged in a state court with the crime of enforcing federal gun laws.

Farfetched? Not as much as you might think.

The scenario would become conceivable if legislation passed by Missouri’s Republican-led Legislature is signed into law by Democratic Gov. Jay Nixon.

The Missouri legislation is perhaps the most extreme example of a states’ rights movement that has been spreading across the nation. States are increasingly adopting laws that purport to nullify federal laws – setting up intentional legal conflicts, directing local police not to enforce federal laws and, in rare cases, even threatening criminal charges for federal agents who dare to do their jobs.

An Associated Press analysis found that about four-fifths of the states now have enacted local laws that directly reject or ignore federal laws on marijuana use, gun control, health insurance requirements and identification standards for driver’s licenses. The recent trend began in Democratic leaning California with a 1996 medical marijuana law and has proliferated lately in Republican strongholds like Kansas, where Gov. Sam Brownback this spring became the first to sign a measure threatening felony charges against federal agents who enforce certain firearms laws in his state.

Some states, such as Montana and Arizona, have said "no" to the feds again and again – passing states’ rights measures on all four subjects examined by the AP – despite questions about whether their "no" carries any legal significance.

"It seems that there has been an uptick in nullification efforts from both the left and the right," said Adam Winkler, a professor at the University of California at Los Angeles who specializes in constitutional law.

Yet "the law is clear – the supremacy clause (of the U.S. Constitution) says specifically that the federal laws are supreme over contrary state laws, even if the state doesn’t like those laws," Winkler added.

The fact that U.S. courts have repeatedly upheld federal laws over conflicting state ones hasn’t stopped some states from flouting those federal laws – sometimes successfully.

About 20 states now have medical marijuana laws allowing people to use pot to treat chronic pain and other ailments – despite a federal law that still criminalizes marijuana distribution and possession. Ceding ground to the states, President Barack Obama’s administration has made it known to federal prosecutors that it wasn’t worth their time to target those people.

Federal authorities have repeatedly delayed implementation of the 2005 Real ID Act, an anti-terrorism law that set stringent requirements for photo identification cards to be used to board commercial flights or enter federal buildings. The law has been stymied, in part, because about half the state legislatures have opposed its implementation, according to the National Conference of State Legislatures.

About 20 states have enacted measures challenging Obama’s 2010 health care laws, many of which specifically reject the provision mandating that most people have health insurance or face tax penalties beginning in 2014.

After Montana passed a 2009 law declaring that federal firearms regulations don’t apply to guns made and kept in that state, eight other states have enacted similar laws. Gun activist Gary Marbut said he crafted the Montana measure as a foundation for a legal challenge to the federal power to regulate interstate commerce under the U.S. Constitution. His lawsuit was dismissed by a trial judge but is now pending before the 9th U.S. Circuit Court of Appeals.

"The states created this federal monster, and so it’s time for the states to get their monster on a leash," said Marbut, president of the Montana Shooting Sports Association.

The Supreme Court ruled in 1997 that local police could not be compelled to carry out provisions of a federal gun control law. But some states are now attempting to take that a step further by asserting that certain federal laws can’t even be enforced by federal authorities.

A new Kansas law makes it a felony for a federal agent to attempt to enforce laws on guns made and owned in Kansas. A similar Wyoming law, passed in 2010, made it a misdemeanor. The Missouri bill also would declare it a misdemeanor crime but would apply more broadly to all federal gun laws and regulations – past, present, or future – that "infringe on the people’s right to keep and bear arms."

U.S. Attorney General Eric Holder sent a letter in late April to the Kansas governor warning that the federal government is willing to go to court over the new law.

"Kansas may not prevent federal employees and officials from carrying out their official responsibilities," Holder wrote.

Federal authorities in the western district of Missouri led the nation in prosecutions for federal weapons offenses through the first seven months of the 2013 fiscal year, with Kansas close behind, according to a data clearinghouse at Syracuse University.

Felons illegally possessing firearms is the most common charge nationally. But the Missouri measure sets it sights on nullifying federal firearms registrations and, among other things, a 1934 law that imposes a tax on transferring machine guns or silencers. Last year, the federal government prosecuted 83 people nationally for unlawful possession of machine guns.

So what would happen if a local prosecutor actually charges a federal agent for doing his or her job?

"They’re going to have problems if they do it – there’s no doubt about it," said Michael Boldin, executive director of the Tenth Amendment Center, a Los Angeles-based entity that promotes states’ rights. "There’s no federal court in the country that’s going to say that a state can pull this off."

Yet states may never need to prosecute federal agents in order to make their point.

If enough states resist, "it’s going to be very difficult for the federal government to force their laws down our throats," Boldin said.

Missouri’s governor has not said whether he will sign or veto the bill nullifying federal gun laws. Meanwhile, thousands of people have sent online messages to the governor’s office about the legislation.

Signing the measure "will show other states how to resist the tyranny of federal bureaucrats who want to rob you of your right to self-defense," said one message, signed by Jim and Arlena Sowash, who own a gun shop in rural Stover, Mo.

Others urged a veto.

"Outlandish bills like this – completely flouting our federal system – make Missouri the laughingstock of the nation," said a message written by Ann Havelka, of the Kansas City suburb of Gladstone.

Follow David A. Lieb at: http://www.twitter.com/DavidALieb

Read more here: http://www.kentucky.com/2013/06/21/2686935/federal-nullification-efforts.html#storylink=cpy

Judge Scalia On How “Easy” It Is to Deny You Your Rights

 

Supreme Court Justice Antonin Scalia has again treated us to his “textualist” reading of the Constitution, telling an American Enterprise Institute audience that unfettered abortion access, “homosexual sodomy” and the retiring of the death penalty are all “easy” to decide against.

Reports Seattle Pi:

“The death penalty? It’s easy. Give me a break. It’s easy. Abortion? Absolutely easy,” Scalia told the AEI faithful.

[…]

“Nobody ever thought the Constitution prevented restrictions on abortion,” Scalia added. “Homosexual sodomy? Come on. For 200 years, it was criminal in every state.”

Scalia’s mantra is that the Constitution is not to be treated as a living, breathing document whose promise of Liberty evolves with its people, but rather an iron-clad relic that should be read as it was set down, and in only that way.

This illuminating talk from Scalia comes as several marriage equality cases stand ready to be taken up by the Supreme Court, a number that will directly challenge the federal law that bans the government from recognizing same-sex marriages, the Defense of Marriage Act.

Another case on the Supreme Court’s docket in the coming months, likely after the November elections it would now seem, will be the Proposition 8 case where a federal judge and the 9th Circuit Court of Appeals decided that the voting majority of California violated state and federal guarantees of equal protection in 2008 by defining away the right to marry a same-sex partner.

Scalia, a Reagan appointee, has sat on the bench for much of the life of the gay rights struggle. He has consistently found cause to rule against gay rights. Most notably, Scalia dissented in Lawrence v. Texas, the case that would serve to eventually make unenforceable state level bans on sodomy.

In the dissent Scalia, while terming the sodomy ban “facially neutral” even though the Texas ban applied solely to homosexual acts, wrote:

Today’s opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct…. [T]he Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed.

While this may give us a rather face-slapping clue as to Scalia’s overall opinion of gay rights, the case may be of particular interest in that, with his dissent, Scalia found room to criticize the Court’s majority for its concern over the criminalization of sodomy leading to discrimination, citing that this ignored the will of the people:

So imbued is the Court with the law profession’s anti-anti-homosexual culture, that it is seemingly unaware that the attitudes of that culture are not obviously “mainstream”; that in most States what the Court calls “discrimination” against those who engage in homosexual acts is perfectly legal.

Proposition 8′s defenders have harped, seemingly to play a tune to which a conservative judiciary might hum, that the voting people of California, through the democratic process, decided against gay marriage and therefore the will of the people should stand — this of course sidesteps the fact that minority rights will nearly always and by their nature find disfavor at a majority poll.

While Scalia’s approach to law, his “textualist” attitude, seems to give him easy answers on topics like abortion restriction and, to quote again “homosexual sodomy,” one can’t help but feel that a judge who knows how he will rule before he has heard the individual cases at hand might be going in with a level of bias that is, to say the least, concerning.

However, for those of us familiar with Scalia’s views on a variety of topics, none perhaps more eyebrow-raising than his refrain that sex discrimination is Constitutionally sound, Scalia’s latest volley against reason and equality, and his apparent admission that being a Supreme Court justice is “easy” when it comes to issues like these, will not be a surprise.

Equal rights proponents were never looking to Scalia for affirmation, but then Scalia’s celebrity has already been cemented among religious conservatives, legislators like Scott Brown, and Republican presidential nominee Mitt Romney who has said he would be looking to appoint similarly minded judges.

Scalia’s latest AEI talk serves, then, as a healthy reminder of what that would mean for America.

Read more: http://www.care2.com/causes/judge-scalia-on-how-easy-it-is-to-deny-you-your-rights.html#ixzz291bcIFf0

“Jury Nullification”

If a juror feels that the statute involved in any criminal offense is unfair, or that it infringes upon the defendant’s natural God-given unalienable or Constitutional rights, then it is his duty to affirm that the offending statute is really no law at all and that the violation of it is no crime at all, for no one is bound to obey an unjust law.

“That juror must vote Not Guilty regardless of the pressures or abuses that may be heaped on him by any or all members of the jury with whom he may in good conscience disagree. He is voting on the justice of the law according to his own conscience and convictions and not someone else’s. The law itself is on trial quite as much as the case which is to be decided.”


U.S. Chief Justice Harlan F. Stone, 1941-1946.

FROM DEMOCRACY DEFINED – FOLLOW THIS LINK…

AND

The Jury’s Secret Power
JUDGES MAY NOT TELL YOU THIS, but when you sit on a jury, you have the right to vote according to your
conscience and to judge the law being applied to the case. As a juror, you are the final safeguard for justice.
It’s the judge’s obligation to give the jury the wording of the law being applied to the case. If the judge fails to
provide the wording of the law or you think the law he gives you is a bad or unconstitutional law or a good law
being improperly applied, or there are other factors that would make you regret a vote to convict someone, then
it is your right and duty as a juror to vote “Not Guilty” even if you are the only juror who does and you therefore
“hang” the jury. You cannot be punished for the way you vote.
Our lawmakers sometimes pass bad laws, and, at times, good laws have been misused. Throughout history
reasoning jurors have refused to convict fellow citizens who were accused of breaking the law: They freed tax
protesters during the Whiskey Rebellion of 1794, refused to convict those who aided runaway slaves in violation
of the Fugitive Slave Act of 1850, freed bootleggers charged during Prohibition 1920-30, and released Vietnam
War objectors 1960-70.
When our country was young, all jurors were told of their right to judge the law, as well as the facts of the case.
Then judges decided that juries should no longer be told of their power to act as a safeguard against bad laws or
unethical lawmakers. Now, all jurors are instructed to accept the law as it is given to them by the judge, even in
cases where the law is clearly unjust.
But now you know the secret: If you are selected as a juror, you have the right and duty to do the right thing:
to follow your conscience and to judge the law as well as the facts of the case. It is the only way to keep
government in the hands of the people.
“I consider [trial by jury] as the only anchor ever yet imagined by man, by which a government
can be held to the principles of its constitution.” –Thomas Jefferson to Thomas Paine, 1789.
For more information, please contact the Fully Informed Jury Association:
www.fija.org
Call 1-800-835-5879 for a free jury packet.